This is a referendum case. Plaintiff commenced action in lieu of prerogative writ seeking relief in the nature of mandamus to compel defendant Irvington Town Clerk, to file a petition of voters and place on the ballot a referendum concerning a portion of salary ordinance adopted by the Irvington Town Council.
The factual background is as follows. The Town of Irvington is organized under the Optional Municipal Charter Law (Faulkner Act), N.J.S.A. 40:69A-1 et seq. On October 12, 1978 Ordinance MC #2549, entitled "An Ordinance Establishing Salary Ranges for Employees and Officials of the Town of Irvington" (hereinafter referred to as the salary ordinance) was signed by the Mayor of Irvington. It was
published on October 19, 1978 in a local newspaper. A committee challenging the propriety of a portion of the salary ordinance was established, called "Stop the Pay Hikes Committee" (hereinafter the committee). The committee was advised the deadline for filing a petition for a referendum on the salary ordinance was November 7, 1978. On that date it filed petitions, including the names of 1,244 registered voters, in protest of the adoption of the salary ordinance who petitioned that certain of the salary increases provided in the ordinance be submitted to the voters through referendum.
The challenge to the salary ordinance was to those wage increases provided for the mayor, chief executives, council members, officers, administrators, managerial executives, elected officials or any manager, executive or confidential employee as defined under N.J.S.A. 34:13A-3. On November 22, 1978 the town clerk ruled that the petition was deficient. The alleged deficiencies were that the petition did not comply with statutory requirements of N.J.S.A. 40:69A-186. Moreover, the petition was alleged to be so vague and confusing as to be legally defective. Thereafter, on November 27, and December 1, 1978 the committee made an attempt to comply with the alleged deficiencies. This included an effort to add a "verification" to the petitions and correct other deficiencies under the referendum section of the Faulkner Act.
On December 1, 1978, notwithstanding the "corrective amendments" by the committee, the town clerk submitted, pursuant to N.J.S.A. 40:69A-187, a certificate that the petition remained insufficient in both substance and form and set forth particulars thereon. Thereafter, the committee commenced this action against the town council, Mayor and other municipal officials of Irvington (collectively called "Irvington"). On December 4, 1978 a court order stayed the implementation of the salary ordinance pending the court's determination of this case.
Two legal issues are before the court. First, which of two statutes, namely, N.J.S.A. 40A:9-165 or N.J.S.A. 40:69A-184 et seq. , or both, control the form and substance relating to this potential referendum. Second, is the referendum petition so vague and confusing as to be deficient as a matter of law? The court addresses these issues.
Irvington argues that the provisions of the Faulkner Act govern a potential referendum relating to the salary ordinance. Irvington acknowledges that N.J.S.A. 40A:9-165 is a specific statute relating to salary ordinances. However, it asserts that since this statute is silent on matters of form and procedure, including the question of verification of petitions, § 165 must be implemented by those specific provisions of the Faulkner Act which relate to referenda, namely, N.J.S.A. 40:69A-184 et seq.
The Faulkner Act includes a broad range of statutes containing a number of optional municipal government plans, each containing its own governmental procedures. Additionally, the act contains various provisions of general application entitled "Additional Provisions Common to Optional Plans" (Article 17). Within these provisions are included, among others, "Election in General," "Local Legislation," "Recall," "Wards" and the subject of this inquiry, "Initiative and Referendum."
The provisions of the Faulkner Act concerning initiative and referendum are set forth in N.J.S.A. 40:69A-184 to 196, inclusive. The controversy essentially relates to § 186, which states:
All petition papers circulated for the purposes of an initiative or referendum shall be uniform in size and style. Initiative petition papers shall contain the full text of the proposed ordinance. The signatures to initiative or referendum petitions need not all be appended to one paper, but to each separate petition there shall be attached a statement of the circulator thereof as provided by this section. Each signer of any such petition paper shall sign his name in ink or indelible pencil and shall indicate after his name his place of residence by street and number, or other description sufficient to identify the place. There shall appear on each petition paper the
names and addresses of five voters, designated as the Committee of the Petitioners, who shall be regarded as responsible for the circulation and filing of the petition and for its possible withdrawal as hereinafter provided. Attached to each separate petition paper there shall be an affidavit of the circulator thereof that he, and he only, personally circulated the foregoing paper, that all the signatures appended thereto were made in his presence, and that he believes them to be the genuine signatures of the persons whose names they purport to be. [Emphasis supplied]
Section 188 of the Faulkner Act sets forth procedures on amending a petition after an initial determination of insufficiency. This section has no great significance in this case, as both the initial and amended petition were ruled insufficient. The basic thrust of Irvington's argument is that the committee failed to ...